China Threatens to Legalize Repression

By Stanley Lubman, The Wall Street Journal, China Real Time Report

China is in the process of completing a landmark revision of its Criminal Procedure Law. Among the proposed changes are several that will, at least in theory, accord accused criminals the sorts of protections they deserve.

But Beijing’s lawmakers have also proposed a change to the law that has the potential to send a chill through the Chinese legal and activist communities.

A draft of the revised law, posted (in Chinese) Tuesday on the website of the National People’s Congress, confirms what many rights advocates had previously feared: That China plans to legalize the secret and illegal detentions that have previously been carried out in violation of existing law.

The most famous example of a Chinese citizen who was subjected to such a secret detention is artist Ai Weiwei, who was held for 81 days on suspicion of “economic crimes,” kept for much of that time in a windowless cell on the outskirts of Beijing, without his family being notified of his whereabouts. “There’s no way to even question it. You’re not protected by anything,” Mr. Ai, wrote of his detention in a recent essay for Newsweek. “Why am I here? Your mind is very uncertain of time. You become like mad.”

In a perverse gesture of governmental transparency, the revised law would legalize such treatment without providing any legal means to challenge it. At the same time, the proposal illustrates a profound dilemma faced by the Chinese leadership.

Chinese law currently permits “residential surveillance” – i.e., house arrest of suspects in their homes — and provides that when a criminal suspect is detained or formally arrested, his family or work unit must be notified within 24 hours. According to an interpretation from the official Legal Daily cited in an AFP report, the proposed amendments to “residential surveillance” laws would allow police to hold suspects in secret locations in cases involving “state security,” terrorism or major corruption.

Police would need permission from a prosecutor or public security agency to detain people in a “specified location” in cases when they believe holding them at home could “obstruct the investigation,” the report said. However, there is no provision requiring police to contact family members of suspects involved in these types of cases if it could hinder their inquiries. Joshua Rozenzweig, a civil rights activist with the Dui Hua Foundation, has said that the proposal “would essentially legitimize the enforced disappearances that we have been seeing more and more of over the past year or so.”

The Chinese leadership has been determined to stifle dissent, as shown by the recent “disappearances” of Ai and numerous other high-profile critics of the regime. Since the outbreak of the “Jasmine Revolution” in the Middle East, the number of dissidents, rights activists and lawyers who have been held in secret locations has increased.

China’s Criminal Procedure Law has not been amended since it came into effect in 1997. Even while considering the “legalization” of secret detentions, the drafters of the proposed revisions of the code seem to be moving in another direction at the same time. Other proposals, if adopted, would at least formally bring aspects of China’s criminal procedure more into line with protections for persons accused of crime that are common in the West. For example, according to Xinhua, the Code would be amended to outlaw the use of forced confessions as evidence and would also enlarge the rights of suspects to meet with their defense attorneys. Other proposed revisions have been reported to include “no longer compelling defendants’ family members to testify against them, and granting mental health patients who are forcibly detained the right to judicial review.”

The coexistence of moves toward increased procedural legality with formalization of authoritarian police measures to quell dissent vividly illustrates some of the contradictions in society and governance that trouble China today. Dissent is viewed as a threat to “social stability,” but other currents in Chinese society are strengthening a pluralism of values. Those include not only dedication to economic development and nationalism, which support the co-opting of the population, but also free expression and legality.

With a little less than a month left for the public to comment on the draft revisions to the Criminal Procedure Law, it remains to be seen how China’s legal community will react to the proposed changes.